The Honorable D. Brook Bartlett, United States District Judge for the Western 1

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2780

___________

Noorusadat Hossaini, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Western Missouri Medical Center, *

*

Appellee. *

___________

 Submitted: January 12, 1998

Filed: April 6, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit

Judges.

___________

WOLLMAN, Circuit Judge.

Noorusadat Hossaini appeals the district court’s entry of summary judgment

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in favor of her former employer, Western Missouri Medical Center (hereinafter

“WMMC” or “the hospital”), in her claim alleging unlawful termination in violation of

the Employee Polygraph Protection Act (EPPA), 29 U.S.C. §§ 2001-2009. We affirm.
The text of Mo. Rev. Stat. § 205.160 reads, in pertinent part: 2

 “The county commissions of the several counties of this state . . . are

hereby authorized, as provided in sections 205.160 to 205.340, to

establish, construct, equip, improve, extend, repair and maintain public

hospitals and engage in health care activities, and may issue bonds

therefor as authorized by the general law governing the incurring of

indebtedness by counties.”

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I.

WMMC is a county hospital located in Johnson County, Missouri, organized

pursuant to Mo. Rev. Stat. §§ 205.160 - 205.379. The hospital is managed by a board 2

of trustees, the individual members of which are elected by the citizens of Johnson

County. See Mo. Rev. Stat. § 205.170. The board of trustees has delegated the hospital’s

daily operational and managerial duties to WMMC’s president, Greg Vinardi. Vinardi

is appointed by the board of trustees and is subject to removal at their election. See Mo.

Rev. Stat. § 205.190.5.

On June 19, 1992, Hossaini began working as an ultrasound technologist in

WMMC’s radiology department. As part of her duties at the hospital, Hossaini was

expected to competently perform both general and vascular ultrasounds. During

Hossaini’s employment at the hospital, WMMC’s management was apparently

dissatisfied with her lack of proficiency in performing vascular ultrasounds. As a result,

in June of 1993 Susan Black, the lead ultrasound technologist at WMMC, began

compiling a list of allegedly substandard ultrasound examinations performed by Hossaini.

Black did not keep a similar list for any other employee.

Shortly thereafter, WMMC discovered that each of the allegedly substandard

ultrasound films identified in Black’s list was missing, as was the list itself. In addition,

a logbook used to document ultrasound examination information was missing. The
The facts underlying Hossaini’s Title VII claim are set forth in greater detail in 3

our prior opinion. See Hossaini, 97 F.3d at 1086-88. The motion to incorporate

portions of the record from that appeal is granted.

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hospital commenced an investigation of the missing items. An inventory revealed that no

other films were missing. WMMC interviewed thirteen hospital employees about the

missing films. Four of the employees speculated that Hossaini might have taken the

missing films and logbook, while other employees offered alternative explanations. No

one witnessed Hossaini take the films or logbook, and Hossaini denied ever having done

so.

On October 5, 1993, WMMC sent a letter requesting that Hossaini submit to a

polygraph examination pursuant to 29 U.S.C. § 2006(d). This request was repeated in a

letter dated October 18. Hossaini refused to take a polygraph examination and her

employment was terminated on November 1, 1993.

Hossaini thereafter commenced a civil rights action alleging employment

discrimination based on national origin and unlawful retaliation in violation of 42 U.S.C.

§ 2000e et seq. (Title VII) and the Missouri Human Rights Act, Mo. Rev. Stat. §§

213.055 and 213.070. See Hossaini v. Western Missouri Med. Ctr., 97 F.3d 1085, 1085-

86 (8th Cir. 1996). WMMC moved for summary judgment, asserting two legitimate,

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nondiscriminatory reasons for Hossaini’s dismissal: (1) WMMC reasonably believed that

Hossaini had stolen the ultrasound films and logbook; and (2) Hossaini could not

adequately perform vascular ultrasounds. See id. at 1087. The district court granted

summary judgment for WMMC, finding that Hossaini had failed to produce evidence

showing that the hospital’s proffered nondiscriminatory reasons were a pretext for

discriminatory animus. See id. We reversed, concluding that Hossaini had submitted

sufficient evidence to raise a factual issue with regard to pretext. See id. at 1090. Upon

remand, the district court submitted the case to a jury, which returned a verdict in favor

of WMMC.
The text of Section 2006(a) reads: “This chapter shall not apply with respect to 4

the United States Government, any State or local government, or any political

subdivision of a State or local government.”

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Hossaini thereafter initiated the present action, alleging that she had been

unlawfully discharged in violation of the EPPA. WMMC moved for summary judgment,

arguing that as a political subdivision of Johnson County it is exempt from the EPPA

pursuant to 29 U.S.C. § 2006(a). The district court agreed and granted summary

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judgment for WMMC. On appeal, Hossaini contends that the district court’s grant of

summary judgment was erroneous for the following reasons: (1) WMMC “invoked” the

EPPA in the Title VII litigation and therefore should have been judicially estopped from

contending that it is exempt from the EPPA’s mandates; (2) WMMC deliberately

separated itself from Johnson County in the prior litigation and therefore should have been

judicially estopped from contending that it is a political subdivision of Johnson County;

and (3) WMMC is not a political subdivision of Johnson County and therefore is not

exempt from the EPPA. 

We review a grant of summary judgment de novo, applying the same standard as

that applied by the district court. See Rabushka ex rel. United States v. Crane Co., 122

F.3d 559, 562 (8th Cir. 1997), cert. denied, 1997 WL 799884 (1998). Summary judgment

is proper if the evidence, viewed in the light most favorable to the nonmoving party,

demonstrates that no genuine issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. See id.

II.

We first address Hossaini’s contention regarding WMMC’s prior “invocation” of

the EPPA. In Hossaini’s Title VII action, the hospital made the following statement in

support of summary judgment: “These defendants would bring to the Court’s attention

2[9] U.S.C. § 2006 et seq., which permits defendants to request an employee
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to submit to a polygraph examination if it is in connection with an ongoing investigation

involving theft.” Defendant’s Motion for Summary Judgment at 19 (quoted in Appellant’s

Brief at 8). Hossaini argues that because this reference to the EPPA, coupled with similar

references in WMMC’s letters to Hossaini, is inconsistent with the hospital’s current

position, the hospital should be precluded by the doctrine of judicial estoppel from now

contending that it is exempt from the strictures of the EPPA under the provisions of

section 2006(a).

The doctrine of judicial estoppel prohibits a party from taking inconsistent positions

in the same or related litigation. See Wyldes v. Hundley, 69 F.3d 247, 251 n.5 (8th Cir.

1995), cert. denied, 116 S. Ct. 1578 (1996) (quoting Morris v. California, 966 F.2d 448,

452 (9th Cir. 1991)). The underlying purpose of the doctrine is “to protect the integrity

of the judicial process.” Total Petroleum, Inc. v. Davis, 822 F.2d 734, 737 n.6 (8th Cir.

1987). See also Monterey Dev. Corp. v. Lawyer’s Title Ins. Corp., 4 F.3d 605, 609 (8th

Cir. 1993) (applying judicial estoppel in a diversity case). We have not heretofore defined

with precision the elements of the doctrine. Among the circuits that have recognized

judicial estoppel, the apparent majority view is that the doctrine applies only where the

allegedly inconsistent prior assertion was accepted or adopted by the court in the earlier

litigation. See Maharaj v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir. 1997); Gens v.

Resolution Trust Corp., 112 F.3d 569, 572-73 (1st Cir. 1997), cert. denied, 118 S. Ct. 335

(1997); Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996), cert. denied, 117 S. Ct. 954

(1997); Warda v. Commissioner of Internal Revenue, 15 F.3d 533, 538 (6th Cir. 1994);

Levinson v. United States, 969 F.2d 260, 264-65 (7th Cir. 1992); United States for Use

of American Bank v. C.I.T. Constr., 944 F.2d 253, 258-59 (5th Cir. 1991). Under the

minority approach, on the other hand, judicial estoppel applies even where no court has

accepted the prior assertion if the party taking contrary positions demonstrates an intent

to play “fast and loose” with the courts. See Ryan Operations G.P. v. Santiam-Midwest

Lumber Co., 81 F.3d 355, 361 (3d Cir. 1996).
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We find it unnecessary to choose between the foregoing views in the present case.

Under either formulation, judicial estoppel is limited to those instances in which a party

takes a position that is clearly inconsistent with its earlier position. See Linan-Faye Const.

Co. v. Housing Auth. of Camden, 49 F.3d 915, 933 (3d Cir. 1995). Hossaini presumes

that because WMMC’s positions are not explicitly duplicative, they are inherently

inconsistent. However, a close examination of WMMC’s positions demonstrates that this

presumption is premised upon a fundamental misunderstanding of the statutory scheme

set forth in the EPPA.

Section 2002 of Title 29 sets forth broad prohibitions on the use of polygraph

examinations by employers. Among other things, it prohibits an employer from requesting

or requiring an employee to take or submit to a polygraph examination and prohibits an

employer from discharging any employee who refuses to take or submit to such an

examination. See 29 U.S.C. § 2002(1), (3). These prohibitions are subject to a number

of exceptions. As set forth earlier, section 2006(a) states that the EPPA does not apply

to “the United States Government, any state or local government, or any political

subdivision of a State or local government.” Another exception is found at 29 U.S.C. §

2006(d), which states that EPPA does not prohibit an employer from requesting that an

employee submit to a polygraph examination if the examination is administered in

connection with an ongoing investigation and if certain other requirements are met. In

Hossaini’s Title VII litigation, WMMC contended that the latter exception applied. In

contrast, WMMC now submits that the former exception is applicable, a position that

Hossaini argues is inconsistent with the position WMMC asserted in the former litigation.

We conclude that the two positions are not truly inconsistent. WMMC’s

underlying assertion -- that its actions were not prohibited by the EPPA -- remains

unchanged from the position it took in the Title VII case. The hospital has merely utilized

different arguments to support its position. Nonetheless, Hossaini argues that the hospital

attempted in the prior litigation “to bring itself within the protection” of the
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EPPA and should not now be allowed to disavow that statute. Appellant’s Brief at 24.

This argument misconceives the basic nature of the EPPA. The EPPA does not grant

employers special protections and privileges that would not exist in the absence of the

legislation. At bottom, the EPPA is a prohibitive statutory scheme that identifies certain

types of conduct as unlawful and provides limited exceptions in which the general

prohibitions are inapplicable. The hospital was not seeking refuge in the EPPA in the

Title VII case, but rather was simply asserting that the EPPA’s general prohibitions did

not apply. WMMC’s current position is therefore not irreconcilable nor inherently

inconsistent with its prior assertions. Accordingly, there is no reason to estop it from

asserting that position. See Linan-Faye, 49 F.3d at 933.

III.

We turn next to Hossaini’s contention that judicial estoppel should be applied

because of WMMC’s prior representations regarding its relationship with Johnson

County. Hossaini named WMMC, Johnson County, and the board of trustees as

defendants in her Title VII complaint. In their responsive pleadings and motions, the

various defendants, either collectively or individually, made a number of denials and

assertions regarding WMMC’s relationship with Johnson County. The defendants

asserted that Johnson County did not operate WMMC, was not involved in the day-to-day

operations of the hospital, received no revenue or income from its operation, and was not

Hossaini’s employer within the meaning of Title VII. In light of the foregoing, Hossaini

voluntarily dismissed Johnson County pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Hossaini

argues that, by advancing or approving the aforementioned assertions, WMMC conducted

a “deliberate campaign of separating itself from Johnson County,” Appellant’s Brief at

24, and should therefore now be judicially estopped from asserting that it is a political

subdivision of Johnson County.

Federal regulations implementing the EPPA define “political subdivision” in the

following manner:
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The term any political subdivision of a State or local government means any

entity which is either:

(1) Created directly by a state or local government, or

(2) Administered by individuals who are responsible to public

officials (i.e., appointed by an elected public official(s) and/or subject

to removal procedures for public officials, or to the general

electorate).

See 29 C.F.R. § 801.10(c) (emphasis in original). Under this definition, a county need not

be involved in the day-to-day operations of a hospital or derive revenue from such

operations in order for the hospital to be considered a “political subdivision” of the

county. All that is necessary is that the hospital be created by a state or local government

or administered by individuals who are responsible to public officials. 

Under either of these criteria, the hospital is clearly a political subdivision of

Johnson County. WMMC was created by the county pursuant to Mo. Rev. Stat. §§

205.160 - 205.379. In addition, WMMC’s administration is appointed by public officials,

the board of trustees. Thus, the assertions advanced by the defendants in the civil rights

litigation are not inconsistent with a finding that WMMC is a political subdivision under

the definition set forth at 29 C.F.R. § 801.10(c). Accordingly, there is no room for the

application of the doctrine of judicial estoppel here. See Linan-Faye, 49 F.3d at 933.

IV.

Finally, we address Hossaini’s contention that the district court erred as a matter

of law in finding that WMMC is a political subdivision under 29 U.S.C. § 2006(a).

Hossaini’s argument is premised on Stribling v. Jolley, 245 S.W.2d 885, 890 (Mo.
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1952) (en banc), wherein the Missouri Supreme Court held that a county hospital is not

a political subdivision of the state. Stribling, however, was based entirely on state law

and antedated the EPPA by some thirty-six years. “It is axiomatic that federal law

governs questions involving the interpretation of a federal statute.” In Re Columbia Gas

Sys. Inc., 997 F.2d 1039, 1055 (3d Cir. 1993). WMMC clearly fits within the scope of

the definition of political subdivision set forth in the relevant federal regulation. See 29

C.F.R. § 801.10(c). It is undisputed that the hospital was created pursuant to Mo. Rev.

Stat. §§ 205.160 - 205.379 and that its administration is appointed by and responsible to

publicly elected officials. Thus, the district court correctly found that the hospital falls

within the exemption created by 29 U.S.C. § 2006(a).

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.